United States: Copyright At The Museum: Musings In Anticipation Of The IPO Dinner At The MoMA

Last Updated: September 9 2016
Article by Jenevieve J. Maerker

As a fan of modern art, I am looking forward to the dinner reception at next week's Annual Meeting of the Intellectual Property Owners Association (IPO), which will be held at New York's Museum of Modern Art.  As a member of IPO's Copyright Committee, in anticipation of the dinner I have been musing about a fascinating and complicated question:  Can I take snapshots of the art while visiting the MoMA?  It turns out that this is a thorny and contested issue.  I will not presume to get to the bottom of it in this blog post, particularly since every work of art has its own complicated factual history, but I thought it could be interesting to lay out some rules of the road and share some perspectives on the question.

Copyright and the Public Domain

First things first: If I take a photograph of a painting, I am making a copy of it.  Many of the works in the Museum of Modern Art are not very old, and are probably still protected by copyright.  Setting aside fair use arguments, copying is a no-no.

But what about older works?  As a general rule, any work that was published in the United States before 1923, with the authority of the copyright owner, is in the public domain in this country.  And many works in MoMA's collection were created before 1923 – Vincent Van Gogh's Starry Night (1889), Pablo Picasso's Les Demoiselles d'Avignon (1907), and Henri Matisse's Dance I (1909), to name a few.  Many of these pre-1923 works are probably in the public domain.  I say "probably" because they may not have been published before 1923.  Publication can be a key factor in the copyright status of a work, and whether and when a work of fine art has been "published" can be its own thorny issue.  The Estate of Pablo Picasso, through the Artists' Rights Society, claims copyright in Les Demoiselles d'Avignon, for instance.  However, nobody appears to be claiming copyright in Van Gogh's Starry Night, so we'll take that as our example.

Amateur Photos of Public Domain Artworks

If a work is truly in the public domain, once I have access to the painting (thank you, IPO and MoMA!) there is nothing in copyright law to stop me from snapping a photo of it and doing whatever I like with that photo.  However, access can of course come with strings, and in MoMA's case it does:  While the museum's website features a picture of a visitor taking a photo of Monet's Water Lilies, the visitor policies state that photography is permitted for personal use only, and photos may not be reproduced, distributed, or sold.  For public domain works, these are restrictions based in contract law rather than copyright law.

Professional Photos of Public Domain Artworks                      

But what if I'm not happy with the quality of the picture I can take with my cell phone camera?  Can I find a digital image of Starry Night online – say, on MoMA's website – and use that for my own purposes?  MoMA says no.  The painting's entry in the museum's online catalog has a section on "image permissions" that refers would-be users to MoMA's licensing agents, Scala Archives and Art Resource, which can "supply high-resolution digital image files provided to them directly by the Museum's imaging studios."  And while the Art Resource page on Starry Night contains no copyright notice for the work itself, it does claim "Digital Image © The Museum of Modern Art."  In other words, MoMA claims a copyright in the photo it took of Starry Night, and presumably will only license it to me if I pay a fee and agree to restrictions on my use.

Here is where things get contentious.  Photographs are clearly works of authorship that can enjoy copyright protection, and MoMA's photo was taken and published well after 1923.  However, in 1999, in a well-known case called Bridgeman Art Library v. Corel Corp., a judge in the Southern District of New York concluded that photographs that amount to precise reproductions of paintings did not enjoy copyright protection: "In this case, plaintiff by its own admission has labored to create 'slavish copies' of public domain works of art.  While it may be assumed that this required both skill and effort, there was no spark of originality – indeed, the point of the exercise was to reproduce the underlying works with absolute fidelity.  Copyright is not available in these circumstances."  36 F. Supp. 2d 191, 197.  (The Bridgeman court based its ruling in part on the Supreme Court's rejection of the "sweat of the brow" theory of copyright in Feist v. Rural Telephone Service, which we recently covered in the blog.  The court also cited, incidentally, a statement by MoMA's General Counsel at the time to the effect that such a photograph "might not have enough originality to be eligible for its own copyright.")  While a few other courts have followed this reasoning in slightly different contexts, Bridgeman – a district court decision – remains the leading case on the copyrightability of photographic reproductions of fine art paintings.

Museum Policies and Priorities

Museums, of course, have a variety of motivations and justifications for claiming copyright in their photos of public domain paintings despite the ruling in Bridgeman.  In their missions to enhance public access to art, they must balance wide dissemination of digital reproductions against consideration for their institutions' financial stability, for example.  They may also have concerns relating to donor restrictions, liability, reputation, etc.  And they may have a basis for distinguishing their photographs from those at issue in Bridgeman.  For example, I note that the high-resolution photo of Starry Night available for license via Art Resource (unlike the one on MoMA's website) includes the ragged edge of the painting and canvas, plus a sliver of background – perhaps this adds enough originality to merit copyright protection?

In the end, museums walk a fine line here and must find a path forward through a complex and often confusing legal and factual landscape.  Many museums follow an approach similar to MoMA's, but some have taken a completely different route.  The Rijksmuseum in Amsterdam, for instance, offers free downloads of high-resolution images of many works in its collection and even sponsors a bi-annual competition for the most creative derivative works based on those digital files.

Clearly, the question of what copyright does protect and should protect, and what rights museums can claim and should claim, is extremely complicated and well beyond the scope of this blog post.  (And I haven't even mentioned moral rights!)  If you see me next week at the MoMA, I would be glad to debate it all over a drink ... and I may or may not have a camera in my other hand.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

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